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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 08-10-2011, 03:06 PM
CycleDad CycleDad is offline
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Default Expert witnesses and Timelines

I missed the timeline of 90 days to serve expert whitness reports. It's 60 ay before trial session starts and the rule is 90 days. Unless I get the trial judges permission.
I have already served a critique report of her expert witness by mine but now I wonder if I still have to get a full blown report. Since the is only one ful report that the judge can choose from.
What can I do to get my expert's full report included for the trial?
thanks.

Here is the rule for Reference:

RULE 23: EVIDENCE AND TRIAL
(23) A party who wants to call an expert witness at trial shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25),
(a) at least 90 days before the start of the trial; or
(b) in the case of a child protection case, at least 30 days before the start of the trial. O. Reg. 6/10, s. 8 (4).
SAME, RESPONSE
(24) A party who wants to call an expert witness at trial to respond to the expert witness of another party shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25),
(a) at least 60 days before the start of the trial; or
(b) in the case of a child protection case, at least 14 days before the start of the trial. O. Reg. 6/10, s. 8 (4).
SAME, CONTENTS
(25) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The substance of the expert’s proposed evidence. O. Reg. 6/10, s. 8 (4).
SUPPLEMENTARY REPORT
(26) Any supplementary expert witness report shall be signed by the expert and served on all other parties,
(a) at least 30 days before the start of the trial; or
(b) in the case of a child protection case, at least 14 days before the start of the trial. O. Reg. 6/10, s. 8 (4).
FAILURE TO SERVE EXPERT WITNESS REPORT
(27) A party who has not followed a requirement under subrule (23), (24) or (26) to serve and file an expert witness report, may not call the expert witness unless the trial judge allows otherwise. O. Reg. 6/10, s. 8 (4).
  #2  
Old 08-10-2011, 05:35 PM
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wretchedotis wretchedotis is offline
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Default

You are self-rep?

Send a letter to the other sides lawyer asking for it to be over-looked.
They may consent - you never know.

If it were me, and all else failed, I would just submit it anyways - and then hope for the best.

Trial Judges (so I've heard) will relax the rules somewhat for a SRL. So if you ask the judge using the appropriate means, I imagine it would likely be allowed.
  #3  
Old 08-11-2011, 10:11 AM
SillyMe SillyMe is offline
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I would move as fast as you can with the paperwork...period. There is plenty of case law which speaks to expert testimony; the judge would have to give really good reason's not to allow it even mid trial. Any witness could be made an expert on a subject if the judge sees fit. I tried to have a CAS witness deemed an expert while she was on the stand. The reason; 'Only expert witnesses can give opinion evidence'. It was this CAS workers opinion that the mother was alienating my daughter from me. She wanted to give her opinion but, the judge wouldn't allow it. It could not be used and, I was instructed by the judge to, instruct my witness to cease and desist from trying to give her opinion on the stand. The trial would have had to of stopped so, that this CAS worker could submit her CV, blah, blah, blah...was the judges reason.

You will need 3 copy's of this expert person's CV. One for apposing counsel, one for the judge and, one for you. Make sure these are submitted with any report. It is only after the person takes the stand can they be made an expert as it relates to the case at hand. If the CV is good enough, the judge can accept it and deem this person an expert. Veteran social workers, like those with the OCL which have previously been deem experts by other judges/times are easier to do. Opposing counsel can always oppose though.

Good Luck
  #4  
Old 08-17-2011, 06:10 PM
formyGirls formyGirls is offline
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CycleDad,

I am kind of in the same boat as you.... but my situation has a little hitch. I don't have a real trial date yet, but I am told it is supposed to be in November.

I have a trial management conference in September, and confirmed with the courthouse today that my divorce will go to trial in November... and get this - I don't find out until the first week of November, and it could ANY time in the month ?!? Guess I just have to take the whole month off and wait and see? Hard to know when to serve things too!

I am planning on asking the judge at the trial conference for leave of the rules of service regarding expert witnesses. I haven't been served with their expert reports, etc., so it is hard for me to serve any rebuttal witnesses either. I can't serve my witnesses unless I have dates. Confused as to how the system can run efficiently like this, lol! Got a sinking feeling that at the trial conference we are going to get delayed for trial, because of stuff like this.

Have you done your trial management conference yet?

formyGirls
  #5  
Old 08-18-2011, 10:33 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by wretchedotis View Post
You are self-rep?

Send a letter to the other sides lawyer asking for it to be over-looked.
They may consent - you never know.

If it were me, and all else failed, I would just submit it anyways - and then hope for the best.

Trial Judges (so I've heard) will relax the rules somewhat for a SRL. So if you ask the judge using the appropriate means, I imagine it would likely be allowed.
The other side should consent as Wrechedotis suggests. Give it a try.

Good Luck!
Tayken
  #6  
Old 08-18-2011, 10:39 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by formyGirls View Post
CycleDad,

I am kind of in the same boat as you.... but my situation has a little hitch. I don't have a real trial date yet, but I am told it is supposed to be in November.

I have a trial management conference in September, and confirmed with the courthouse today that my divorce will go to trial in November... and get this - I don't find out until the first week of November, and it could ANY time in the month ?!? Guess I just have to take the whole month off and wait and see? Hard to know when to serve things too!
This sounds like a blitz listing to me. TMC's are very technical but, judges often twist arms to reach settlement. Be prepared for the last chance at a mediated settlement at the TMC. You may get scheduled to another TMC though if the judge feels there is an opportunity to settle matters. TMC doesn't always mean ==> to trial.

Quote:
Originally Posted by formyGirls View Post
I am planning on asking the judge at the trial conference for leave of the rules of service regarding expert witnesses. I haven't been served with their expert reports, etc., so it is hard for me to serve any rebuttal witnesses either.
Has the other party offered expert witness evidence already in the matter or identified that they have retained experts? My understanding is that OCL and evaluation were not done. What experts do you expect them to present at trial?

Quote:
Originally Posted by formyGirls View Post
I can't serve my witnesses unless I have dates. Confused as to how the system can run efficiently like this, lol! Got a sinking feeling that at the trial conference we are going to get delayed for trial, because of stuff like this.
You will have to provide your witness list at the TMC and duration of trial (if not set already) will be determined by the judge. There is a lot of procedure to a trial. Evidence book, etc... It is no walk in the park to do self represented.

Good Luck!
Tayken
  #7  
Old 08-22-2011, 04:29 PM
CycleDad CycleDad is offline
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Quote:
Originally Posted by formyGirls View Post
CycleDad,

I am kind of in the same boat as you.... but my situation has a little hitch. I don't have a real trial date yet, but I am told it is supposed to be in November.

I have a trial management conference in September, and confirmed with the courthouse today that my divorce will go to trial in November... and get this - I don't find out until the first week of November, and it could ANY time in the month ?!? Guess I just have to take the whole month off and wait and see? Hard to know when to serve things too!

I am planning on asking the judge at the trial conference for leave of the rules of service regarding expert witnesses. I haven't been served with their expert reports, etc., so it is hard for me to serve any rebuttal witnesses either. I can't serve my witnesses unless I have dates. Confused as to how the system can run efficiently like this, lol! Got a sinking feeling that at the trial conference we are going to get delayed for trial, because of stuff like this.

Have you done your trial management conference yet?

formyGirls
If I understand correctly they have not yet served you with reports from their expert whitnesses. From my limited experience; In that case you can ask for an ajourment since you are allowed 90 days before trial to get your own expert whitness to critique or to serve your own expert reports etc.

Or perhaps You could say that they knew the rules especially if they are represented by lawyers and as to go ahead with the trial as planned and exclude these reports if the is anything. If there is a good reason,the judge will most likely adjourn the trial to another date/sitting.
  #8  
Old 08-22-2011, 05:49 PM
formyGirls formyGirls is offline
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The m.o. of my ex and her lawyer so far has been to delay and delay and delay. So if they are truly bringing in her expert witnesses, I am expecting them to try and pressure me to consent to short notice service, or make me be the one to request the adjournment.

I will be pushing to move forward and exclude the expert witnesses that her lawyer wants (which also eliminates my need for expert witnesses at this stage). Her lawyer has indicated that they will be bringing in the family doctor and an as-yet-unidentified speech path. But until I have an idea as to what they are expected to say, it is hard for me to know exactly if and when I need rebuttal expert witnesses, or if I can just use cross examination to break apart their case.

I have substantial proof that there have been many delays, exclusively on their part, which will hopefully also sway the judge in my direction to keep things moving. Her lawyer is all full of "huff and puff", and often has tried to intimidate me and try to get me to back down. I think this is why he has mentioned bringing in the expert witnesses, but the reality is, there is little the witnesses can add to help their case. I don't think there will be any experts called, but have to be ready for it if they try to get them introduced on short notice anyhow.

One question --- does anyone know if CAS caseworkers are considered "expert witnesses" or not? Haven't looked up the definition yet, but wondering about any experiences here with that?
  #9  
Old 08-23-2011, 12:39 PM
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Tayken Tayken is offline
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Quote:
Originally Posted by formyGirls View Post
The m.o. of my ex and her lawyer so far has been to delay and delay and delay. So if they are truly bringing in her expert witnesses, I am expecting them to try and pressure me to consent to short notice service, or make me be the one to request the adjournment
Don't try to theorize on what the other parent and their solicitor is doing. Just solve problems as they come up. Don't anticipate what they are going to do. Be aware of what might happen but, don't allow the anticipation to create an anxiety in you.

Don't expect them to do anything improper. What you are suggesting is that the solicitor will attempt a tactic. Be warned that what you see as a "tactic" as an unrepresented litigant may in fact be the proper application of the law. You should expect the other parent's solicitor to act in accordance to the rules as their governing body expects.

Judges, better than anyone on this board or any "article" you have read are very aware of the procedure "tactics" and you don't need to point it out to the judge. In fact, be careful in doing this. You may think something is a tactic when it is not and you could upset a judge. Judges don't always treat self represented litigants with white gloves.

You constantly appear in your posts to be seeking personal justice when you should be seeking your children's "best interests". Always be focused on your children's best interests.

Quote:
Originally Posted by formyGirls View Post
I will be pushing to move forward and exclude the expert witnesses that her lawyer wants (which also eliminates my need for expert witnesses at this stage).
This is often a high-conflict tactic that people take. Be very careful with this. It will backfire on you. The experts are just that, experts and you should welcome their opportunity to be cross examined. It looks bad if you are trying to remove someone who may be a benefit in helping resolve matters. If they are truly "experts" then their statements should have no bias at all. Also, technically are they "experts" if they have not consulted with you regarding the matters? A judge will take this into consideration when balancing their statements in his/her judgment in the matters.

Some times, "experts" can do more harm than good. So I wouldn't try to "fight" them. Accept them and prepare a good cross examination.

Quote:
Originally Posted by formyGirls View Post
Her lawyer has indicated that they will be bringing in the family doctor and an as-yet-unidentified speech path. But until I have an idea as to what they are expected to say, it is hard for me to know exactly if and when I need rebuttal expert witnesses, or if I can just use cross examination to break apart their case.
These are experts about your children. It is going to be hard to find experts to counter their statements regarding your children. If the family doctor is also your doctor the doctor has a responsibility to you as a patient. Be mindful of how you conduct yourself in the presence of the family doctor. Everything you have said, everything in the medical charts and everything possibly in your medical charts will become part of the trial.

I can only assume that you have a poor relationship with the family practitioner for your daughters as you don't want the doctor to testify. Improve your relationship, fix problems you may have caused and do not insight conflict with your children's service providers. It will only come back to haunt you and may already be haunting you.

Quote:
Originally Posted by formyGirls View Post
I have substantial proof that there have been many delays, exclusively on their part, which will hopefully also sway the judge in my direction to keep things moving.
Proof = evidence and evidence is based on facts. Keep to the "facts". If they are delays in responding demonstrate it. I.e. I sent correspondence on date X at time Y via method Z and didn't get a response until XX days later. Don't pass on your opinions - don't tell the judge it is bad faith. Let the judge see the relevance. Judges don't need to be "swayed" on bad faith. It is in plane sight for everyone to see in the conduct that has gone on.

Quote:
Originally Posted by formyGirls View Post
Her lawyer is all full of "huff and puff", and often has tried to intimidate me and try to get me to back down.
Intimidation is a form of abuse. Be very careful on making this statement, especially in an affidavit about a professional. If this is the case then a judge will see it. You don't have to point it out and call it "intimidating". Just quote the correspondence, point out that it is difficult to negotiate things when such a strong stance is taken etc...

THE LAST THING YOU WANT TO DO IS INSULT THE OTHER SOLICITOR AT TRIAL OR IN CORRESPONDENCE! You as a self represented litigant are expected to conduct yourself in accordance with the rules. So, refer to the other solicitor as "my friend" as expected in the proceedings.

Quote:
Originally Posted by formyGirls View Post
I think this is why he has mentioned bringing in the expert witnesses, but the reality is, there is little the witnesses can add to help their case. I don't think there will be any experts called, but have to be ready for it if they try to get them introduced on short notice anyhow.
I wouldn't call them "expert" witnesses. They are experts as service providers to your children and as such are experts in the domains they provide service to your children. Hopefully you haven't conducted yourself with regards to these service providers in an improper manner. That would only harm you. If you try to "control" the service providers, threaten them, or act in an odd way. Their observations of your behaviour will become part of the trial.

Quote:
Originally Posted by formyGirls View Post
One question --- does anyone know if CAS caseworkers are considered "expert witnesses" or not? Haven't looked up the definition yet, but wondering about any experiences here with that?
As part of your Form 35.1 which will be required to be updated all CAS reports and other materials have to be attached as required by the rules. So, yes, they can be called as witnesses and often are. I would expect al the CAS workers involved to be called to testify should you get to trial.

I would provide consent for the release of their notes and reports prior to trial. This is about as much as you can do. Do this so you know what they have written and what questions to ask. You mentioned a lot of CAS involvement. Expect for a judge to want to hear from them and possibly the law enforcement officers involved.

Good Luck!
Tayken
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